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Divorce and the Alternatives

The separation of a married couple creates several issues which must be addressed such as: child custody, child support, visitation, and property division . Divorce is the most common way married couples resolve these issues, but there are alternatives.

After reading this information, if you decide that you may want to proceed with legal action, please see the related booklet, Information about How to File Papers in the Essex County Probate and Family Court.

Annulment

Annulments "undo" a marriage by treating the couple as if no marriage had ever occurred. If one party was not legally able to enter a marriage because, for example, they were already married to someone else, the marriage is "void" from the beginning. If there is some other reason why the marriage should not be recognized, such as fraud, then the marriage is "voidable." Annulments are rarely granted by the courts and should only be sought when the facts clearly show that the marriage is invalid.

Annulments for "void" marriages

If the marriage is void, the parties are not required to file for an annulment. However, to be on the safe side, it is highly recommended that you do. A marriage can be void for three reasons:

    1. The parties are too closely related by blood (consanguinity). For example, a brother and a sister.

    1. The parties are too closely related through marriage (affinity). For example, a father-in-law and daughter.

  1. One person was married to someone else at the time they married the second person (bigamy). However, if the person now seeking an annulment knew at the time of the marriage about the prior marriage, they cannot seek an annulment.

Remember:

The reason given for claiming that the marriage was void must be the actual reason you left your spouse.

Annulments for "voidable" marriages

An annulment is also available for voidable marriages. The party must file a "Complaint for Annulment" in the Probate and Family Court in order to undo the marriage. Voidable marriages occur when:

  • One spouse lacked the mental capacity to marry. This includes cases where one spouse was not of legal age to be married and did not seek parental or judicial consent for the marriage. The legal age in Massachusetts for marriage is 18.
  • One spouse was impotent. This means the spouse lacks the ability to sexually perform and not merely the inability to have children.
  • There was fraud going to the essence of the marriage contract. For example, one party entered the marriage solely to avoid deportation and led the other party to believe otherwise.
  • One spouse was under the influence of drugs or alcohol during the ceremony such that he or she did not have the capacity to consent to the marriage.

To file for an annulment, you follow the same procedures as for a divorce. See the brochure entitled Information About How To File Papers In Essex Probate and Family Court also in this series. The effect of an annulment is that the parties are treated as if they were never married.

What is separate support?

An action for separate support alleges that one spouse has the ability to support the family but is not doing so. An action for separate support can be brought by a spouse, a guardian of a minor child, or the Department of Transitional Assistance if the family receives public benefits. It provides for the enforcement of legal duties of the couple while the marriage continues. If you live apart from your spouse, you can start an action for separate support by filing a Complaint for Separate Support in the Probate and Family Court. If you do not live physically apart from your spouse, you can still bring an action for separate support in the Probate and Family Court.

There is a filing fee for an action for separate support, but the filng fee can be waived for low income people who file an Affidavit of Indigency that is approved by the court. No other actions for annulment or divorce or separate support can be pending at the time you file for separate support. Your spouse must be personally served with the complaint. This means that (s)he is hand-delivered the summons. For further information on serving the complaint, see How To File Papers in Essex Probate and Family Court.

You must be able to prove one of three grounds:

  • The other spouse has failed to provide suitable support.
  • The other spouse has deserted the person filing the action.
  • That there is justifiable cause for living apart even if the spouses are not currently living apart.

The separate support action does not allow the parties to marry someone else. They can later file for a divorce which will replace the separate support order. In a separate support action, a Judge can enter orders concerning minor children, spousal support, and the equivalent of a restraining order. The Judge can also order one spouse to vacate the marital home for 90 days if it is in the children's best interests. The division of property and any debts of the two parties cannot be dealt with through a separate support action.

After reading this, if you think a separate support action may be right for you, we recommend that you read the booklet, Information About How to File Papers in the Essex Probate and Family Court before proceeding.

What is a divorce?

The only way to terminate a marriage and be able to marry someone else is to file for a divorce. You must file a certified copy of your marriage certificate, a divorce complaint and financial statements in the Probate and Family Court. There is a $215 filing fee unless the Court finds you eligible for a fee waiver upon filing an Affidavit of Indigency. Check with the court personnel to determine if you are eligible for a fee waiver based on your income. You can file for divorce due to an irretrievable breakdown of the marriage (no-fault) or by proving fault of the other party. IF both parties come to an agreement (on the various divorce related issues such as: child custody, support, visitation, alimony, and division of assets and debts), you can file a joint petition for divorce due to the irretrievable breakdown of the marriage. Both parties must then appear in court for a brief hearing where a Judge determines if the agreement is fair. If the parties are unable to come to an agreement or if one party is unavailable, the other party may still file for divorce on the grounds of an irretrievable breakdown. The court will hold a hearing and enter orders regarding both parties.

If you are filing a fault-based divorce, one of several grounds for divorce must be proven with evidence:

  • Cruel and Abusive Treatment
    This is the most common fault ground. Any prior restraining order should be attached to the divorce complaint as exhibits.
  • Adultery
    Proof of sexual intercourse outside the marriage is required.
  • Impotence
    This refers to the inability to perform sexually and not merely the inability to have children.
  • Nonsupport
    You must prove that your spouse had the ability to support you and that his or her refusal to provide the necessities of life is gross, wanton, and cruel.
  • Desertion
    for at least one year. Your spouse must abandon you without justification or provocation.
  • Gross and Confirmed Habits of Intoxication
    caused by voluntary and excessive use of alcohol or drugs.
  • Prison sentence for at least five years
    even if the actual time spent in jail is less than five years. You should file a certified copy of the conviction with the court.

After the divorce hearing, the Judge enters a Judgment of Divorce Nisi which becomes final in 90 days. You cannot remarry until the end of the 90 day nisi period. The court order can include spousal support, child custody, child support, and visitation, and a division of property assets and debts.

What about when family violence is an issue?

Massachusetts enacted the Abuse Prevention Act to allow protection for someone abused by a person close to him or her.

Abuse, for purposes of this law, means:

    • attempting to cause or causing physical harm;

    • placing another in fear of imminent serious physical harm; or

  • causing another to engage involuntarily in sexual relations by force, threat or duress.

Protection is available for people who:

    • are or were married to one another (spouses or former spouses)

    • are or were living together in the same household

    • are or were related by blood or marriage (in-laws and other relatives); have a child in common

  • are or have been in a substantive dating relationship.

If the court finds that the requirements of the law have been met, it can:

    • order the defendant to stop abusing the plaintiff

    • order the defendant not to contact the plaintiff

    • order the defendant to leave and stay away from the family home, the plaintiff's workplace and the children's schools

    • award the plaintiff temporary custody of any minor child

    • order the defendant to turn in any firearms and FID card

    • order the defendant to pay child support

    • order the defendant to pay monetary compensation for losses suffered as a direct result of the abuse

    • order the plaintiff's address to be sealed (impounded) so that the defendant cannot get it from the court

    • order the defendant not to abuse or contact the minor child or children

  • recommend that the defendant attend a batterer's treatment program.

You can file for a restraining order in District Court, Superior Court, and Probate and Family Court. If you moved because of the abuse, you should ask that your address be impounded (kept confidential) so that the abuser will not know where you are currently living.

There is no filing fee to obtain a restraining order, but you must go to court on two separate dates to formally obtain the order.

Only the person seeking the order attends the first hearing. A second hearing is scheduled within 10 days after the first and both parties are notified and attend. At the second hearing, the court can enter an order lasting up to one year. On the expiration date of that order, you can reappear at court for a renewal hearing and may ask the judge to make the order permanent or to extend the order for any additional time necessary.

In a divorce case, the Court has the power to issue a permanent restraining order at the time of the divorce hearing or at any renewal hearing. Probate and Family Court can enter an order regarding the child custody, spousal and child support and losses incurred as a result of the abuse by the person seeking the restraining order.

The District Court cannot address the issue of visitation.

Therefore, if the restraining order was issued by the District Court, the parties must go to Probate and Family Court in the event they would like to modify the order to include visitation rights.

What are the alternatives to legal action?

In some situations, court action is not desirable and may even cause more problems between the parties. Some people simply need time to think things over. Marriage counseling may be an appropriate solution and is widely available. A Court may not allow you to get divorced if it does not think that you have made any attempt to reconcile your differences.

If the separation is expected to last for any length of time, the parties should write an agreement to settle all issues necessary for them to live apart. Such agreements commonly include arrangements for the care of children, if there are any, provisions for spousal and/or child support, and a division of the property necessary for each party to live separately. Both parties should see separate attorneys before signing the agreement. People may change their minds or simply disagree about what the original agreement really was.

Mediation may also be an option for you if you feel it can be done safely. You should consult your yellow pages for mediators who assist in divorce cases if this interests you. Also, if a case is filed in court, you should ask to be referred to a mediation program which is approved by the Court.


Produced by Neighborhood Legal Services
Last updated April, 2006


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